Please be aware that your reproduction of the handwritten or typed letters of Chuck Philips to individuals violates his copyright and trademark. Violation of Mr. Philips’ copyright and trademark can head to fines in excess of 100,00 per instance.
As a courtesy, we will give you 72 hours to remove this material from your website. I have advised Mr. Philips to take legal action against you and your website should you not cease and desist within this time frame.
Dear Mr. Carlson:
I represent Patrick Frey and write in response of yours of August 2nd.
Your email leaves us with some questions. Regarding your trademark claim, can you please specify the trademarks to which you are referring?
With respect to the copyright claim, you refer to statutory damages for reproduction. As you know, statutory damages are only available for registered copyrights, and the registration must have been made within 90 days of first publication. In this connection, can you please provide the copyright registrations for these materials so that this claim may also be appropriately evaluated?
Please direct all future correspondence or other transmissions concerning this matter to the undersigned only. Thank you for your courtesies.
Ronald D. Coleman
GOETZ FITZPATRICK LLP
Dear Mr. Coleman,
This letter is in your response to your email of Aug 3, 2012 quoted below. Please be advised that your legal theory is incorrect. As a matter of law under 17 USC § 101 et seq. all materials created into a complete written form are automatically copyrighted when they are complete. This protection of the author does not require registration with a copyright office (although registration can lead to increase in damages and other remedies).
Except as permitted under the copyright act of 1976, no part of any publication of Mr. Philips’ work may be reproduced or distributed in any form or by any means, or stored in a data base or retrieval system, without prior written permission of the publisher (Philips). According to § 504 of the statute referred to in the paragraph supra, reproduction of work without the copyright holder’s (Philips) permission is subject to actual damages and profits, statutory damages and profits and additional damages as outlined in the following italicized statute section:
“… In any case in which the court finds that a defendant proprietor of an establishment who claims as a defense that its activities were exempt under section 110 (5) did not have reasonable grounds to believe that its use of a copyrighted work was exempt under such section, the plaintiff shall be entitled to, in addition to any award of damages under this section, an additional award of two times the amount of the license fee that the proprietor of the establishment concerned should have paid the plaintiff for such use during the preceding period of up to 3 years.”
Be advised that you are also mistaken in your notion that the statute of limitations is 90 days after original publication. The actual statute with regard to Internet is a matter of years. In addition, as the author (Philips) has also asked Mr. Frey to remove these documents by phone, we believe that tolling and a suspension of the time period for filing a lawsuit are appropriate. If you do not remove these letters we will proceed against Mr. Frey.
Note that are also contemplating a defamation cause of action.
Please be advised that, moreover, as a matter of ethics, your publication of these letters by the author may interfere with the prosecution of ongoing criminal cases in New York, adversely impacting these prosecutions. We certainly hope that an individual who associates himself with the DA’s office in law enforcement would be aware of the untoward consequences of his actions and show appropriate judgment. It appears, at the very least, unseemly for an individual associated with law enforcement to be involved in the dissemination of this sort of prejudicial information. In this connection, it may be of some assistance for your client to review the ongoing cases of the US v. James Rosemond of which Mr. Frey should be aware, given his stated expertise. Certainly your client would not want to interfere with this prosecution. We will assume that now that we have made you aware of these ethical issues, your client will remove these materials as a matter of prudent judgment and so further investigation and complaint will not be necessary.
I retain, as a matter of course for my own affairs, an AV-rated intellectual property lawyer and litigator with a specialty in defamation with whom I have consulted. I will fully fund a suit against Mr. Frey if URLs connected to Mr. Philips are not removed within three business days.
I had hoped that as a simple matter of law expressed in the statutes quoted above, this could be resolved amicably and swiftly. We are, however, fully prepared to proceed against your client using all remedies at our disposal. Our initial research suggests there are multiple jurisdictions in which we can bring a defamation and copyright infringement action, many of them quite favorable to plaintiffs.
Please remove the offending URLs. We look forward to and anticipate your prompt cooperation.
I will not debate you, but merely advise that your reckoning with respect to my “legal theory” is, to put it gently, faulty. In fact, I did not proffer any “theories”; I merely asked for additional information with respect to your purported claims against Mr. Frey. You have declined to provide the information requested — a response that is nearly always an indication that a legal threat is baseless.
Indeed, it can be deduced from your response that the material in which copyright is being claimed was not timely registered and, by all indications, is not registered even now. Similarly, your refusal to identify the trademark claimed to have been infringed in your earlier email implicitly confirms that, as was fairly obvious, there is no trademark issue here at all. As to your new suggestion that Mr. Frey’s posting of these letters raises “ethical issues” that have some sort of legal implications, the suggestion is not well taken. The same goes for your vague threats regarding a defamation action.
Moreover, you should be under no illusion Mr. Frey will be intimidated by the threat of litigation, however meritless. Be advised that there are no practical limitations on the legal resources at Patrick Frey’s disposal to defend his interests in connection with this matter.
In sum, you have provided no legal or other ground for your demand that Mr. Frey remove these materials from the Internet, and we will so advise him.